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Tuesday, April 10, 2018

r Order VII Rule 11(d) of CPC. = suit for declaration and injunction= plea of barred by limitation - a mixed question of law can not be decided at threshold = we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d).

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3500 OF 2018
(Arising out of SLP (Civil) No.26401 of 2017)
CHHOTANBEN AND ANR. …..Appellant(s)
:Versus:
KIRITBHAI JALKRUSHNABHAI THAKKAR
AND ORS. ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal, by special leave, takes exception to the
judgment and order dated 13th January, 2017 of the High
Court of Gujarat at Ahmedabad in Civil Revision Application
No.76 of 2016.
2. The appellants filed a suit for declaration and permanent
injunction on 18th October, 2013, against the respondents
before the Principal Senior Civil Court, Anand, being Regular
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Civil Suit No.166 of 2015 (Old No. Special Civil Suit No.193 of
2013). The frame of the subject suit is on the assertion that
the appellants and original defendant Nos.1 & 2 were in joint
ownership and possession of an ancestral property inherited
by them from their predecessor (father), deceased Bawamiya
Kamaluddin Saiyed, bearing Survey No.113/1+2, area H.1-37-
59 Ara, Akar Rs.15-81 paise. That land is old tenure
agricultural land situated at Mouje Village, Hadgud Taluka
and District Anand. The said ancestral, joint, undivided land
was jointly possessed and used and enjoyed by the appellants
(plaintiffs) and original defendant Nos.1 & 2 (predecessors of
respondent Nos.2 to 15), after the demise of their father
Bawamiya Kamaluddin Saiyed, being in his straight line of
heirs. The names of Jahangirmiya Bawamiya Kamaluddin
Saiyed and Hussainmiya Bawamiya Kamaluddin Saiyed
(original defendant Nos.1 & 2 respectively) came to be recorded
in the record of rights along with the names of the appellants
and since that time, all of them were jointly in possession and
usage of the undivided land. The appellants assert that they
have half (1/2) share, rights, powers, possession and usage
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rights in the property. It is their case that without their
knowledge the original defendant Nos.1 & 2 transferred the
said land after forging their (appellants) signatures. The
appellants were not aware about the said transaction effected
vide registered sale deed No.4425 dated 18th October, 1996,
which they came to know from their community members,
immediately whereafter they made enquiry in the office of Sub
Registrar at Anand. It was revealed to them that the land has
already been transferred by a registered sale deed dated 18th
October, 1996 in favour of defendant Nos.4, 5 and 6 (Anilbhai
Jaikrishnabhai Jerajani, Kiritbhai Jaikrishnabhai Thakkar
and Kekanbhai Jaikrishnabhai Thakkar, respectively). They
promptly applied for a certified copy of the registered sale
deed. They were also informed that Jaikrishnabhai Prabhudas
Thakkar had expired and, therefore, the defendant Nos.3 to 6
received the land as heirs. It is then asserted that from the
registered sale deed, they came to know that their thumb
impressions were obtained as witnesses in the presence of
Bhikhansha Pirasha Divan. They asserted that they had neversigned or gave their thumb impressions upon any such deed, 4in any manner, in front of any witness. It is then stated thatsome person has been fraudulently involved for putting thumbimpressions on the sale deed. They have asserted that thethumb impressions on the sale deed did not belong to themand that they were ready and willing to prove that fact byproviding their genuine thumb impressions in front of officers.
It may be relevant to reproduce paragraph 4 of the plaint
which reads thus:
“4. The paragraph no.1 property is jointly owned, co-shared,
jointly used and possessed by the applicants and
respondents nos.1 and 2. The respondents nos.1 and 2 do
not have any rights to sell the property on their own. In case
if the respondents nos.1 and 2 have the willingness to sell
the property, they are required to obtain our consent. This
was very well in the knowledge of the respondents nos.1 and
2 yet they have entered into a sale deed for the property in
an illegal manner. But the actual possession and usage of
the suit property is jointly undertaken by us. Before two
days, the applicants meet the respondents and asked them
not to hinder, harass, etc. as to these rights on the land. We
asked the respondents to partition our half part, provide
actual possession of the land, yet the respondents did not
consider this request. On the contrary it was stated by them
that the respondents nos.2 to 6 shall sell the property to
someone else, the courts are open and we can take steps
whatever we can.”
3. In paragraph 6 of the plaint, the appellants have stated
about the cause of action for filing the suit in the following
words:
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“6. The cause as to the filing of the suit, as mentioned
under the above mentioned paragraph pertains to the fact
that the respondents nos.1 and 2 without the knowledge ofthe applicants, while keeping the applicant in dark, removedthe name of the applicants from the record of rights andentered into a registered sale deed no.4425 dated18.10.1996 without the knowledge of the applicants. Upongetting the above mentioned knowledge, the applicants meetthe respondents personally before two days and requestedthem to cancel the sale deed and hand over the clear,marketable and actual vacant possession of the property tothe applicants. Yet the respondents did not consider therequest and mentioned that the courts are open for usthereby asking us the applicants to do whatever we wishedto do. Therefore the present issue has arise at the village
Hadgud without the jurisdiction of the honourable court.”
4. As mentioned above, the suit came to be filed for
declaration and permanent injunction and for the following
reliefs:“a) The honourable court be pleased to declare that theproperty mentioned under the paragraph no.1 being situatedat Mouje village Hadgud, Taluka and district Anand, surveyno.113/1+2, area heacter 1-37-59 Ara, Akar Rs. 15-81 paisaold tenure agricultural land is ancestral property of theapplicants and thereby the applicants have undivided ½(half) part, share, interest and right in the property and apartition of the land be undertaken in a judicial manner andthe actual possession, usage, etc. be provided to theapplicants in the interest of justice.b) The honourable court be pleased to declare that theMouje village Hadgud, Taluka and district Anand, survey no.113/1+2, area Heacter 1-37-59 Ara, akar Rs. 15-81 Paise oldtenure agricultural land is ancestral, joint, undivided, jointlypossessed and used property of the applicants and therespondents nos.1 and 2 and thereby the respondents nos.1
6and 2 solely do not have the rights and powers to sell orinterference in the title of the property and further declarethat the registered sale deed no.4425 dated 18.10.1996 inthe favour of the respondents nos.4 and 6 is null and void,void ab-initio, cancelled, false and frivolous and thereby thehonourable court be kind enough to declare in the interest ofjustice that the respondents nos.3 to 6 do not receive anykind of rights-powers as to the land on the basis of thisparticular sale deed.c) The honourable court be pleased to pass a permanentinjunction order against the respondents and in the favour ofthe applicants such that, neither the respondents northrough their agents, servants, persons, etc. sell, mortgage,charge, lien, etc. the or construct, etc. upon the propertymentioned under the paragraph no.1 and situated at theMouje village Hadgud, Taluka and district Anand, survey no.113/1+2, area Heacter 1-37-59 Ara, akar Rs. 15-81 Paise oldtenure agricultural.d) The honourable court be pleased to pass a permanentinjunction order against the respondents and in the favour ofthe applicants such that, neither the respondents northrough their agents, servants, persons, etc. interfere,obstruct, hinder, etc. the ancestral, joint, undividedpossession, usage, etc. of the applicants upon the propertymentioned under the paragraph no.1 and situated at theMouje village Hadgud, Taluka and district Anand, survey no.113/1+2, area Heacter 1-37-59 Ara, Akar Rs.15-81 Paise oldtenure agricultural.e) The honourable court be pleased to pass a permanentinjunction order against the respondents and in the favour ofthe applicants such that, neither the respondents northrough their agents, servants, persons, etc. would alter therecord of rights entries for the property mentioned under theparagraph no.1 and situated at the Mouje village Hadgud,Taluka and district Anand, survey no. 113/1+2, areaHeacter 1-37-59 Ara, Akar Rs.15-81 Paise old tenureagricultural. 7f) The honourable court be pleased to pass an appropriateorder found proper and efficacious by the honourable court.g) The honourable court be pleased to order the respondentsto provide for the cost as the suit.”
5. After filing of the suit, an application was filed on 19th
November, 2014 under Orders XIII and XVI of the Code of Civil
Procedure, 1908 (for short “CPC”) read with Sections 67 and
71 of the Evidence Act for directions to defendant Nos.3 to 6 to
produce before the Court, the original deed executed by the
original defendant Nos.1 & 2 in respect of the suit land and to
obtain the admitted thumb impressions of the appellants and
send it for scientific examination and comparison of the
thumb impressions by a Handwriting Expert to unravel the
truth. The original defendant Nos.4 to 6 filed reply to the said
application on 3rd February, 2015, to oppose the same.Thereafter, the defendant No.5 (respondent No.1) on 17th April,2015 filed an application under Order VII Rule 11(d) forrejection of the plaint on the ground that the suit was barredby limitation having been filed after 17 years. The appellants
filed reply to the said application. Both the applications under
Order XIII Rule 16 and under Order VII Rule 11(d), were
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disposed of by the 4th Additional District Judge, Anand on 20th
January, 2016 by separate orders. As regards the application
filed by the plaintiffs (appellants), the Court allowed the same
by passing the following order:
“O R D E R
The application is hereby allowed.
The defendants are directed to produce registered sale deed
no.4425 dt.18/10/1996 in the court and further the register
civil court is directed to take specimen thumb impression of
the plaintiffs as per rules and further such sale deed along
with the specimen of thumb impressions of the plaintiffs be
sent to thumb impression of the witnesses in such sale deed
are of the plaintiffs or not.
Further the thumb impression expert is directed to submit
his report within period of 30 days after receiving the
documents.”
6. As regards the application filed by defendant No.5
(respondent No.1) for rejection of the plaint, the said
application was dismissed by the Trial Court on the same day
i.e. 20th January, 2016. The Trial Court opined that the
contention urged by defendant No.5 (respondent No.1) for
rejection of the plaint was not tenable as the factum of suit
being barred by limitation was a triable issue, considering the
averments in the plaint. The Trial Court observed thus:
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“3. I have given my thoughtful consideration to the
submission made by the learned advocate for both the
parties. The plaintiffs have filed this suit to set aside in
registered sale deed no.4425 dt. 18/10/1996. And this suit
has been filed on 18/10/2013. And the contention of the
Ld. Advocate for defendant no.5 that the suit has been filed
after delay of almost 17 years and hence the suit is prima
faciely barred by law of limitation and other submissions of
the Ld. Advocate of defendant no. 5 that the plaintiffs do not
have prima facie case, it cannot be considered at this stage
because whether there is delay of almost 17 years in filling
this suit or not and whether it is barred by law of limitation
or not, it is subject matter of trial and moreover, the other
submissions of Ld. Advocate for defendant no.5 regarding no
prima facie case in favour of plaintiff also cannot be
considered as these are also the subject matter of trial which
can be decided only after taking the evidence. Moreover, at
the time of deciding the application under order 7 rule 11
the Court has to just look into the averments made in plaint
only and the plea or defense raised by defendant cannot be
taken into account at the stage of deciding the application
under Order 7 Rule 11 and here in this case merely looking
to the pleading in the plaint it does not come out that the
suit barred by law of limitation. Moreover, I am of humble
view the case law cited by Ld. Advocate for plaintiffs reported
as 2015 (1) GLH 1, fully support to the case in hand.
Moreover, I am of humble view that, the case cited by Ld.
Advocate for defendant reported in 2015(2) GLH 355 and
2013 (1) GLR 398, does not support in the present case as
the factual position of these cases and present case are
different.”
7. Respondent No.1 carried the matter before the High
Court by way of a Civil Revision Application No.76/2016
against the order passed by the Trial Court dismissing his
application under Order VII Rule 11(d) of CPC for rejection of
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the plaint. The High Court allowed the application under
Order VII Rule 11(d) of CPC filed by respondent No.1
(defendant No.5) and reversed the decision of the Trial
Court on the finding that the suit was barred by limitation.
For so holding, the High Court in the impugned judgment
observed thus:
“18. This Court notices that the plaintiffs are the sisters and
defendants No.1 and 2 in the suit of the year 2013 have
chosen not to file written statement. Thereby the original
defendants No.1 and 2 who are sellers have not made their
stand clear. Strong possibility cannot be ruled out that the
plaintiffs after about 20 years of the registered sale deed has
chosen to bring a collusive suit. It is true that only detail of
the plaint shall be examined at the stage of considering
application under Order VII Rule 11 of CPC. From a bare
reading of the plaint, it is clearly indicative that the
registered sale deed has been effected in the year 1996 where
the plaintiffs have affixed their thumb impression as
witnesses in the very document and the same came to be
challenged in the year 2013. The reason is not very far to
fetch. With the phenomenal increase in the land price in the
State of Gujarat, such litigations by some of the family
members are sponsored litigations by other unscrupulous
elements are so often initiated. It is not at all difficult to
engineer the same and upset many equations of the
purchasers who have enjoyed the title and peaceful
possession for many years. Attempt is made to question the
registered sale deed on the ground that these were the
ancestral property and 7/12 Form reflected the name of the
revisionist and other defendants. Revenue entry has also
been mutated soon after the registered sale deed in favour of
the revisionist and other defendants in the year 1997. The
mutation order of village form has been effected on the basis
of such registered sale deed on 21st January, 1997. Copy of
which has been issued on 31st March, 1997. For such
inexplicable delay plaintiffs ought to have brought on record
substantiating the documents. However, the documents
which have been brought also point out that the plaintiffs’
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suit is barred by law of limitation for having been preferred
after expiry of three years period. It is to be noted that even
during the course, when revenue authority mutated the
names of present revisionist and other respondents, no
objection came to be raised and it is almost after 18 years,
such objections have surfaced.”
8. The aforementioned decision of the High Court is the
subject matter of this appeal at the instance of the appellants
(plaintiffs). According to the appellants, the High Court
committed manifest error in being swayed away by the fact
that the suit was filed after about 17 years. It has proceeded
on the basis of assumptions and surmises and not in
consonance with the limited sphere of consideration at the
threshold stage for examining the application for rejection of
the plaint in terms of Order VII Rule 11(d) of CPC. It has not
even bothered to analyse the relevant averments in the plaint
which, it is well settled, has to be read as a whole and has also
not adverted to the reasons recorded by the Trial Court that
the factum of suit being barred by limitation was a triable
issue in the facts of the present case.
9. The respondents, on the other hand, would contend that
there is no infirmity in the view expressed by the High Court
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and being a possible view coupled with the fact that the suit
instituted by the appellants appears to be a collusive suit, no
interference in exercise of jurisdiction under Article 136 of the
Constitution, is warranted. According to the contesting
respondents, it is unlikely that the appellants who are sisters
of original defendant Nos.1 & 2, would not have any
knowledge about the transaction effected vide registered sale
deed and especially, when defendant Nos.3 to 6 were in
possession of the land for such a long time, which fact is
reinforced from the mutation entries recorded in 1997 and
including the conversion of the land from agricultural to nonagricultural
use. According to the contesting respondents, this
appeal ought to be dismissed.
10. We have heard Mr. Purvish Jitendra Malkan, learned
counsel for the appellants and Mr. Gaurav Agrawal, learned
counsel for the contesting respondents.
11. After having cogitated over the averments in the plaint
and the reasons recorded by the Trial Court as well as the
High Court, we have no manner of doubt that the High Court
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committed manifest error in reversing the view taken by the
Trial Court that the factum of suit being barred by limitation,
was a triable issue in the fact situation of the present case. We
say so because the appellants (plaintiffs) have asserted that
until 2013 they had no knowledge whatsoever about the
execution of the registered sale deed concerning their
ancestral property. Further, they have denied the thumb
impressions on the registered sale deed as belonging to them
and have alleged forgery and impersonation. In the context of
totality of averments in the plaint and the reliefs claimed,
which of the Articles from amongst Articles 56, 58, 59, 65 or
110 or any other Article of the Limitation Act will apply to the
facts of the present case, may have to be considered at the
appropriate stage.
12. What is relevant for answering the matter in issue in the
context of the application under Order VII Rule 11(d), is to
examine the averments in the plaint. The plaint is required to
be read as a whole. The defence available to the defendants or
the plea taken by them in the written statement or any
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application filed by them, cannot be the basis to decide the
application under Order VII Rule 11(d). Only the averments in
the plaint are germane. It is common ground that the
registered sale deed is dated 18th October, 1996. The limitation
to challenge the registered sale deed ordinarily would start
running from the date on which the sale deed was registered.
However, the specific case of the appellants (plaintiffs) is that
until 2013 they had no knowledge whatsoever regarding
execution of such sale deed by their brothers - original
defendant Nos.1 & 2, in favour of Jaikrishnabhai Prabhudas
Thakkar or defendant Nos.3 to 6. They acquired that
knowledge on 26.12.2012 and immediately took steps to
obtain a certified copy of the registered sale deed and on
receipt thereof they realised the fraud played on them by their
brothers concerning the ancestral property and two days prior
to the filing of the suit, had approached their brothers (original
defendant Nos.1 & 2) calling upon them to stop interfering
with their possession and to partition the property and provide
exclusive possession of half (1/2) portion of the land so
designated towards their share. However, when they realized
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that the original defendant Nos.1 & 2 would not pay any heed
to their request, they had no other option but to approach the
court of law and filed the subject suit within two days
therefrom. According to the appellants, the suit has been filed
within time after acquiring the knowledge about the execution
of the registered sale deed. In this context, the Trial Court
opined that it was a triable issue and declined to accept the
application filed by respondent No.1 (defendant No.5) for
rejection of the plaint under Order VII Rule 11(d). That view
commends to us.
13. The High Court on the other hand, has considered the
matter on the basis of conjectures and surmises and not even
bothered to analyse the averments in the plaint, although it
has passed a speaking order running into 19 paragraphs. It
has attempted to answer the issue in one paragraph which
has been reproduced hitherto (in paragraph 7). The approach
of the Trial Court, on the other hand, was consistent with the
settled legal position expounded in Saleem Bhai and Others
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Vs. State of Maharashtra and Others1, Mayar (H.K.) Ltd.
and Others Vs. Owners & Parties, Vessel M.V. Fortune
Express and Others2 and also T. Arivandandam Vs. T.V.
Satyapal and Another3.
14. These decisions have been noted in the case of Church
of Christ Charitable Trust and Educational Charitable
Society Vs. Ponniamman Educational Trust,
4 where this
Court, in paragraph 11, observed thus:
“11. This position was explained by this Court in Saleem
Bhai v. State of Maharashtra, in which, while considering
Order 7 Rule 11 of the Code, it was held as under: (SCC p.
560, para 9)
“9. A perusal of Order 7 Rule 11 CPC makes it
clear that the relevant facts which need to be
looked into for deciding an application
thereunder are the averments in the plaint. The
trial court can exercise the power under Order 7
Rule 11 CPC at any stage of the suit—before
registering the plaint or after issuing summons
to the defendant at any time before the
conclusion of the trial. For the purposes of
deciding an application under clauses (a) and (d)
of Rule 11 of Order 7 CPC, the averments in the
plaint are germane; the pleas taken by the
defendant in the written statement would be
wholly irrelevant at that stage, therefore, a
direction to file the written statement without
deciding the application under Order 7 Rule 11
CPC cannot but be procedural irregularity

1 (2003) 1 SCC 557
2 (2006) 3 SCC 100
3 (1977) 4 SCC 467
4
(2012) 8 SCC 706
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touching the exercise of jurisdiction by the trial
court.”It is clear that in order to consider Order 7 Rule 11, thecourt has to look into the averments in the plaint and thesame can be exercised by the trial court at any stage of thesuit. It is also clear that the averments in the writtenstatement are immaterial and it is the duty of the Court toscrutinise the averments/pleas in the plaint. In other words,
what needs to be looked into in deciding such an application
are the averments in the plaint. At that stage, the pleas
taken by the defendant in the written statement are wholly
irrelevant and the matter is to be decided only on the plaint
averments. These principles have been reiterated in
Raptakos Brett & Co. Ltd. v. Ganesh Property and Mayar
(H.K.) Ltd. v. Vessel M.V. Fortune Express.”
15. The High Court has adverted to the case of Church of
Christ Charitable Trust and Educational Charitable
Society (supra), which had occasion to consider the
correctness of the view taken by the High Court in ordering
rejection of the plaint in part, against one defendant, on the
ground that it did not disclose any cause of action qua that
defendant. The High Court has also noted the decision relied
upon by the contesting respondents in the case of Mayur
(H.K.) Ltd. and Ors. (supra), which has restated the settledlegal position about the scope of power of the Court to rejectthe plaint under Order VII Rule 11(d) of CPC.
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16. In the present case, we find that the appellants
(plaintiffs) have asserted that the suit was filed immediatelyafter getting knowledge about the fraudulent sale deedexecuted by original defendant Nos.1 & 2 by keeping them inthe dark about such execution and within two days from therefusal by the original defendant Nos.1 & 2 to refrain fromobstructing the peaceful enjoyment of use and possession ofthe ancestral property of the appellants. We affirm the viewtaken by the Trial Court that the issue regarding the suitbeing barred by limitation in the facts of the present case, is atriable issue and for which reason the plaint cannot berejected at the threshold in exercise of the power under OrderVII Rule 11(d).
17. In the above conspectus, we have no hesitation in
reversing the view taken by the High Court and restoring the
order of the Trial Court rejecting the application (Exh.21) filed
by respondent No.1 (defendant No.5) under Order VII Rule
11(d). Consequently, the plaint will get restored to its original
number on the file of the IVth Additional Civil Judge, Anand,
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for being proceeded further in accordance with law. We may
additionally clarify that the Trial Court shall give effect to the
order passed below Exh.17 dated 20th January, 2016,
reproduced in paragraph 5 above, and take it to its logical end,
if the same has remained unchallenged at the instance of any
one of the defendants. Subject to that, the said order must be
taken to its logical end in accordance with law.
18. Accordingly, this appeal succeeds and is allowed in the
above terms, with no order as to costs.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
April 10, 2018.